A 68-year-old man who was knocked off his bicycle when he attempted to enter an access road from a pedestrian pathway has had his claim for personal injuries dismissed.

Concluding that the real and proximate cause of the accident was the man’s use of the pedestrian pathway as a cycleway and his failure to stop prior to reaching the road, Mr Justice David Keane emphasised the need to bring ordinary common sense to bear when considering reasonable care and said that foolhardy behaviour could not become reasonable “merely because a number of people have engaged in it in the past”.

The accident

In April 2012, Mr Vincent O’Mahoney was working as a caretaker for the Waterford County Vocational Education Committee, now named Waterford and Wexford Education and Training Board. Having worked there since 2007, Mr O’Mahoney cycled to his job three or four times a week, and it was his habit to enter the campus via the pedestrian pathway – which he said “plenty of people” cycled along.

On the day in question, Mr O’Mahoney entered the campus through the pedestrian pathway, and the front wheel of his bicycle was just beyond the end of the path when he saw a car driven by Nicola McCarthy Hanlon approaching him from the left. Hoping that the car would avoid him by passing parallel to him on his left, he turned right onto the access road – however the wheel arch of Ms McCarthy’s car “glanced against his left thigh”, causing him to lose balance and fall heavily against the concrete curb.

While Mr O’Mahoney did not immediately believe that he had been injured, Ms McCarthy “expressed immediate concern for his welfare and drove him to a local doctor’s surgery shortly after the accident”. Mr O’Mahoney was later diagnosed with a tendon rotator cuff tear, and had surgery on his shoulder two months after the accident. His operation was a success and he returned to work six months after the surgery. Having since retired, Mr O’Mahoney was described as being “mostly pain-free”, occasionally suffering inflammation of his shoulder for which he is prescribed anti-inflammatory medication.

High Court

In April 2014, a personal injuries summons was issued on behalf of Mr O’Mahoney, alleging that the accident was caused by the negligence of Ms McCarthy in the care, control or driving of her vehicle; or by the Waterford and Wexford Education and Training Board’s negligence, breach of statutory duty, or breach of his employment contract with it, in failing to ensure his safety while on its premises.

In the High Court, Mr Justice David Keane said that he could not accept that Mr O’Mahoney was entitled to use the pedestrian pathway as a cycleway. Mr O’Mahoney submitted that he was so entitled in circumstances where he frequently used it in that way; where others did so as well; and where there were no signs or markings in the immediate vicinity expressly prohibiting such use.

Mr Justice Keane said that the pedestrian entrance to the campus was only accessible from the public footpath upon which cycling is expressly prohibited by law, that the very nature of the pathway and “its alignment with the access road confirm the lack of care and attention, if not outright dangerousness, implicit in treating it as a designated cycleway”. In this regard, Mr Justice Keane said that foolhardy behaviour could not become reasonable “merely because a number of people have engaged in it in the past”.

Furthermore, Mr O’Mahoney’s failure to dismount his bicycle before he reached the junction with the access road was the proximate cause of the accident. An expert engineer gave uncontroverted evidence on behalf of the Board that there was ample time for a walking pedestrian or dismounted cyclist to stop in time for any traffic on the access road, therefore Mr Justice Keane rejected Mr O’Mahoney’s contention that a hedgerow created a blind spot and a danger area for anyone using reasonable care when traversing it.

Mr Justice Keane was also satisfied that Ms McCarthy’s vehicle was not travelling too fast. In addition to accepting expert opinion, Mr Justice Keane explained that the car was hardly damaged, the bicycle was not damaged at all, and Mr O’Mahoney sustained only a bruise to his thigh – the injury to his shoulder was sustained when he fell on the kerb.

In all the circumstances, Mr Justice Keane concluded that Mr O’Mahoney failed to make out a case of negligence against Ms McCarthy or the Board. For the same reasons, Mr Justice Keane found no breach of the Occupiers Liability Act 1995.

Citing Byrne v Ardenheath Company Ltd [2017] IECA 217, Mr Justice Keane reiterated the need for a trial judge “to bring ordinary common sense to bear on his or her assessment of what should amount to reasonable care”.

Dismissing Mr O’Mahoney’s claim against Ms McCarthy and the Board, Mr Justice Keane said that the real and proximate cause of the accident was Mr O’Mahoney’s use of the pedestrian pathway as a cycleway and his failure to stop just prior to the intersection between that pathway and the private access road.